A number of female pupils made allegations that Went, a teacher, had behaved inappropriately towards them and, as a result, he was suspended on full pay.

The letter of suspension stated: “Allegations of inappropriate physical contact and spoken sexual innuendo in the classroom have been made against you which, if proven, would constitute gross misconduct and child abuse.”

After an investigation, Went was issued with a second-level warning at the disciplinary hearing. This was reduced to a first-level warning at the appeal hearing. The decisions of the disciplinary and appeal panels were based on the fact that some but not all of the allegations had been substantiated. Went was told that his actions did not amount to gross misconduct or child abuse, but he was not provided with specific details about which allegations had been upheld.

The tribunal rejected Went’s subsequent constructive dismissal claim, which centred on a breach of the implied duty of trust and confidence. However, on appeal, the Employment Appeal Tribunal (EAT) held that the tribunal had used the wrong test, and ordered the case to be re-heard. The proper test in trust and confidence cases is:

– Was the conduct likely to destroy or damage the relevant relationship? And if so;

– Was there reasonable and proper cause for such conduct?

The effect of the behaviour on the employee should be assessed. If a breach in trust and confidence is found, this will always amount to a fundamental breach of the employment contract. The EAT indicated that, in view of the serious allegations, the school’s handling of the disciplinary procedure (and specifically the suspension letter and failure to specify which allegations had been relied upon) could amount to a breach of the implied term of trust and confidence.